R v YDW

MRS JUSTICE CUTTS: The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.

On 5 August 2025, following a trial in the Crown Court at Lincoln, the appellant was convicted of seven offences of indecent assault, contrary to section 14(1) of the Sexual Offences Act 1956. On 26 September he was sentenced to a total of 12 years' imprisonment made up in the following way. On count 1, a multiple incident count reflecting three occasions of kissing the victim on the lips when she was under 13, 18 months' imprisonment. On count 2, a multiple incident count reflecting three occasions of touching the victim's chest over clothing when she was under 13, a sentence of 24 months' imprisonment. On count 3, a multiple incident count reflecting three occasions of touching the victim's vagina under clothing when she was under 13, four years and six months' imprisonment. On count 4, a multiple incident count reflecting three occasions of kissing the victim on the lips when she was aged 13 to 15, 18 months' imprisonment. On count 5, a multiple incident count reflecting three occasions of touching the victim's breasts over clothing when she was aged between 13 and 15 years, 24 months' imprisonment. On count 6, a multiple incident count reflecting three occasions of touching the victim's vagina under clothing when she was aged between 13 and 15 years, four years and six months' imprisonment. On count 7, one incident of inserting his penis into the victim's mouth, seven years and six months' imprisonment.

The sentences on counts 1 to 6 inclusive were concurrent with each other, making a total of four years and six months' imprisonment for the offending reflected in them. The sentence on count 7 was consecutive to that term.

The appellant appeals the total sentence with leave of the single judge.

We need give little further detail of the offences. They represented a course of conduct by the appellant towards his niece by marriage over a number of years between 1985 to 1995 when she was aged between five and 15 years. The offending occurred at the appellant's home when the victim and her family visited, but also at her own home. The appellant took opportunities to sexually abuse the victim in the way that we have described. In so far as the offence in count 7 is concerned, the appellant had been masturbating in front of the victim and caused her to kiss his penis before partially inserting it into her mouth for a short period. The victim was aged 13 or 14 years at the time of this offence.

In a victim personal statement the victim spoke of overriding feelings of shame and guilt since the abuse occurred. Throughout the time since she has struggled to sleep with the door open or uncovered for fear, still, that the appellant would come into the room. She feared contact with him and that he may somehow have contact with her children. The victim spoke of difficulties with intimate relationships. There were frequent triggering events which remind her of the abuse and she has long suffered with depression and from low mood.

The appellant is now 80 years of age. He has no other convictions or cautions recorded against him. The appellant continued to deny the offences to the author of the pre-sentence report. The author considered him to be at medium risk of causing serious harm to children.

In concise sentencing remarks the Recorder recognised the appellant's previous good character, the age of the offences, the age of the appellant and the fact that he suffers from a number of medical conditions - at that time diabetes, cataracts and anxiety. The Recorder did not consider him to be a danger to children and found there to be no need for a Sexual Harm Prevention Order.

The Recorder proceeded on the basis that the maximum sentence for counts 1, 2 and 3 at the time was one of five years' imprisonment. That is incorrect as we shall come to below. He approached sentence by having regard to the relevant sentencing guideline for the modern equivalent offences whilst recognising that the maximum sentences have increased. No issue is taken or could be taken on this appeal with the categorisation of any of the offences within the modern guidelines.

The Recorder said that he needed to have regard to totality in the overall sentence imposed. He determined that the appropriate way to achieve a total proportionate sentence was to make the sentences in counts 1 through to 6 concurrent with a consecutive sentence for count 7. He considered the offence in count 7 to be qualitatively different from the activity reflected in the other counts because it involved penetration and a degree of planning.

The appellant accepts that the offences of which he was convicted merited a lengthy custodial sentence. He submits however that the total length is manifestly excessive for the following reasons. First, that the Recorder failed to pay proper regard to the principle of totality. Second, that the sentence on count 7 was too long given that this was an isolated incident, did not involve full penetration and was brief in nature. Third, that the Recorder failed to give sufficient weight to the appellant's mitigation. Mr Bailey relies in particular on the appellant's age, ill-health and the fact that he has three children under the age of 16. He places further reliance on the appellant's good character and the fact that the offending was over 30 years ago.

In terms of the appellant's health the position is different today from what it was at sentence. We are told that the appellant has today been taken to hospital, it being thought that he has suffered a stroke and there is a risk that he will suffer a further stroke within the day. Mr Bailey has instructions to proceed but it is right to record that he has applied to adjourn today's appeal for the preparation of a further medical report. He submits that if this court is of the view that the appeal may have merit then a report would be of assistance in determining the length of any reduction that the court may make.

We have considered that request carefully. We accept that the appellant has suffered a stroke and that his health has been impacted. However the role of this court is to consider whether the sentence imposed at the court below was manifestly excessive. We do not in those circumstances consider an adjournment for the preparation of a report on what has happened since sentence was imposed would be of assistance to us.

We do however accept Mr Bailey's further submission that what has happened today has thrown into sharp relief and underlined the point that this appellant is an elderly man with significantly poor health.

We have carefully reflected on the submissions and the grounds of appeal placed before us but we find ourselves unable to accept them. These offences may have occurred a long time ago but they represent a serious derogation in the behaviour to be expected of an adult male relative following the grooming of a young girl over a 10-year period when she was between the ages of five and 15 years. They occurred in places where she was entitled to feel safe, including her own home, and have had a substantial and long-lasting psychological effect on the victim. As the appellant accepts a lengthy sentence of imprisonment was inevitable.

The Recorder had presided over the trial and was well-placed to determine the seriousness of the offences. He took specific account of the appellant's age, ill-health which as the events of today have shown is poor, and good character, although, as the guideline itself makes clear, good character is less likely to be relevant where the offending is very serious. The appellant's age and health conditions whilst relevant cannot in our view detract from the seriousness of this long term offending against a very vulnerable child.

The offence in count 7 was particularly serious, the penetration taking place after the appellant had masturbated in front of the victim and caused her to kiss his penis. We cannot accept that a sentence of seven-and-a-half years' imprisonment was manifestly excessive for this offence which would now be indicted as the rape of a child under 13 or 14 years of age.

In any event the sentence must be looked at as a whole. The Recorder had totality at the forefront of his mind and properly applied the principle by making the sentences on counts 1 through to 6 concurrent, as well as in coming to the overall sentence. In our judgment, notwithstanding the appellant's age and health, a total of 12 years' imprisonment for this catalogue of serious sexual offending is far from manifestly excessive. It follows that this appeal is dismissed.

We have said that the Recorder wrongly considered that the maximum sentence on counts 1, 2 and 3 was one of five years' imprisonment. In fact the offending in those counts took place between 1985 and 1993 which straddled two different sentencing regimes. From March to 15 September 1985 the maximum sentence was five years' imprisonment. From 15 September 1985 it was 10 years. In those circumstances, it would be for the Recorder to make a finding as to when the offending in each count occurred and to then adopt the appropriate sentencing regime with any ambiguity resolved in the appellant's favour. No such findings were made in this case. That was to the appellant's benefit. This court is precluded by section 11(3) of the Criminal Appeal Act 1968 from taking a different approach as to do so would be to deal with the appellant more severely than he was by the court below.

It would further appear from the sentencing remarks that the Recorder imposed a victim surcharge in this case, although the Crown Court Record Sheet does not record such. For the avoidance of doubt, we make clear that no victim surcharge order should have been made as the earliest offending on the indictment pre-dated the victim surcharge provisions.